It is trite to say that the civil court rules and legislation govern civil proceedings. But what if, during the course of a civil proceeding, an order is made under a provision of the Criminal Code of Canada, c. C-46, for which there is no right of appeal to a provincial court of appeal? Should an appeal of such an order be governed by civil procedure or the procedure under the Criminal Code? In other words, does the civil nature of the proceeding govern, and therefore the ordinary civil appeals procedure apply, or are the parties limited to seeking leave to appeal to the Supreme Court of Canada?

The British Columbia Court of Appeal faced this unique procedural question in British Columbia (Director of Civil Forfeiture) v. Hells Angels Motorcycle Corporation, 2014 BCCA 330. In a 2-1 decision, the Court held that an order made under s. 187(1.3) of the Criminal Code can only be appealed pursuant to the provisions in the Criminal Code. Therefore, a provincial court of appeal lacks jurisdiction to hear an appeal of such an order made in the course of civil proceedings.

Background

Following a police investigation into the activities of the Nanaimo, British Columbia chapter of the Hells Angels Motorcycle Club, the Director of Civil Forfeiture commenced an action under the Civil Forfeiture Act, S.B.C. 2005, c. 29, seeking forfeiture of certain chattels and real property from the Club and related entities and individuals. In this action, the Director intended to rely upon wiretap evidence obtained during the police investigation.

In addition to the wiretap evidence, the defendants sought production of the affidavits relied upon when the police obtained judicial authorization for a wiretap. However, the wiretap affidavits were placed in a sealed packed at the Supreme Court of British Columbia, pursuant to s. 187(1) of the Criminal Code. Under s. 187(1.3), a judge can order that the information contained in the “packet” be unsealed, subject to the vetting requirements in ss. 187(4)-(7).

The defendants brought an application for production of documents not in the possession of a party under the Supreme Court Civil Rules, B.C. Reg. 168/2009. The application judge allowed the application, and ordered the packets be unsealed and redacted copies of the affidavits be provided to the defendants. The Director filed an appeal with the British Columbia Court of Appeal and an application for leave to appeal to the Supreme Court of Canada (subsequently discontinued October 30, 2014: see SCC File 35134).

The Appeal

The threshold issue in the appeal was whether the Court had jurisdiction. Writing for the majority, Justice Frankel held that the Court lacked jurisdiction to hear the appeal because “regardless of the purpose behind an application to open a wiretap packet, such an application is criminal in nature and rights of appeal are a matter for Parliament”: para. 45. Justice Frankel adopted Justice La Forest’s reasoning in Kourtessis v. Canada (Minister of National Revenue), [1993] 2 S.C.R. 53, and held as follows:

[163]    In Kourtessis, La Forest J. (for the majority), held as follows with respect to the jurisdictional issues raised in that case:

  1. the application for declaratory relief was civil in nature and could be appealed to a court of appeal;
  2. the application to quash the warrant and for return of the seized items was a matter within the legislative jurisdiction of Parliament under its criminal law and taxing powers and, as Parliament had not provided a right of appeal to a court of appeal, none was available.

In partially dissenting reasons, Mr. Justice Sopinka opined that the aspect of the order dealing with quashing the warrant and returning the seized items could be appealed to a court of appeal together with the declaratory aspect of that order, as the quashing and return had been sought as ancillary relief to the declaration, declaratory relief being civil in nature.

[164]    At the outset of his reasons, La Forest J. noted (at 69) that “[a]ppeals are solely creatures of statute” and that “[t]here is no inherent jurisdiction in any appeal court.” In explaining why a provincial statute could not confer a right of appeal from an order refusing to set aside an Income Tax Act search warrant, he said this (at 77):

I do not doubt that Parliament can, if it wishes, adopt provincial procedures for that purpose, and, such an adoption will be assumed, where it is necessary to give effect to a right, for example, when it confers a civil right without providing a forum or procedure for its enforcement. But when it selects a specific and integrated procedure, as it has done here, then there is no room for the operation of provincial law in relation to that procedure. [Emphasis added by Frankel J.A.]

[166]    In enacting what is today Part VI of the Criminal Code, Parliament put in place a comprehensive and integrated regime with respect to the interception of private communications. That regime includes provisions dealing with management of the documents filed in support of an application for an authorization. It requires those documents to be sealed in a packet and kept in a place to which the public does not have access. It also provides for the opening of a packet and confers jurisdiction on certain judges to do so. As the authorization process is criminal in nature and within the exclusive jurisdiction of Parliament, I cannot accept that an order granting or refusing an application to open a packet will sometimes be criminal and sometimes be civil.

[167]    Contrary to the position advanced by the Director, the respondents’ application was not brought “in the civil action”. That would be so even if they had initiated the process by filing and serving a written application to open the packets bearing the style of cause and court file number of the civil action. To accept the Director’s argument would be to elevate form over substance. An application to open a packet is an application brought in the authorization proceeding itself. While such an application may be brought for a purpose relating to a civil action and before a judge who is otherwise involved in that action, it is not a step in that action. To put it colloquially, when Davies J. was dealing with the application to open the packets he was wearing a criminal hat, not a civil one.

[168]    To accept the Director’s position would result in the “mish-mash” about which La Forest J. expressed concern in Kourtessis. …

[180]    I appreciate Doherty J.A.’s later comments [in Canadian Broadcasting Corporation v. Ontario, 2011 ONCA 624] with regard to there being a “functional benefit” to categorizing an order as civil, as doing so permits a dispute to proceed in an orderly fashion through all levels of the judicial hierarchy: paras. 34-35. However when, as here, the order sought to be appealed is criminal in nature, those benefits are for Parliament to consider.

Although the appeal was discontinued, the Supreme Court of Canada’s decision to grant leave to appeal suggests we have yet to hear the final word on this issue.